Protecting Marriage — The Next Battle

Lis Wiehl

Now that the latest attempt to constitutionally ban gay marriage has failed, I'm predicting where the next legal battle will be in the fight to “protect” marriage: toughening up laws against adultery and polygamy.

Since the Supreme Court issued its 2003 ruling in Lawrence v. Texas (the landmark gay sodomy case that gave rise to the ban on gay marriage proposal), national attention has focused on the issue of same-sex marriage. However, as Senator Rick Santorum stated in the wake of that decision, "If the Supreme Court says that you have the right to consensual (gay) sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything."

Justice Antonin Scalia offered a similar analysis in his dissent in Lawrence, when he wrote, "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise…called into question by today's decision." It seems clear after Lawrence that at least some of the topics listed in Senator Santorum and Justice Scalia's parade of horribles will become fodder for future lawsuits.

Consider adultery. Historically, adulterers have been subjected to severe punishments, including being stoned to death — though in more recent times, much tamer adultery statutes have rarely, if ever, been enforced. Nevertheless, in August 2005, four-star Army General Kevin Byrnes, a 36-year veteran on the verge of retirement, was relieved of his command for committing adultery. This, despite the fact that the affair occurred only after he was formally separated from his wife. Similarly, in 2004, 66-year-old John Bushey, who served for 32 years as the Luray, Virginia town attorney, resigned his position and pled guilty to having an adulterous affair with a 53-year old divorcé, accepting 20 hours of community service and paying a small fine as punishment.

Proponents of laws against adultery say that adultery undermines marriage and destroys families. No doubt. But according to a 1953 study by Alfred Kinsey, 50 percent of married men and 26 percent of married women have committed adultery by age 40. A more recent Ball State University study reported that women have caught up to men in terms of the frequency of their adulterous affairs. Still other studies have shown that five to 15 percent of married couples live in “open marriages.” If those numbers are correct, throwing the book at adulterers could subject more than 50 percent of the populace to criminal prosecution.

Now, consider polygamy. According to a recent article on, polygamy is the “Next Civil Rights Battle.” (If some marriage is good, we ought to protect it by creating more, the logic seems to be.) In recent months, several challenges to anti-polygamy laws have been filed, claiming that such regulations violate constitutional rights to privacy and intimate expression under Lawrence. While there are presently only a small number of such challenges, that number could increase substantially.

A number of sources estimate that 50,000 families in the United States practice polygamy, including Laotian Hmongs in Minnesota and members of Mormon splinter groups in Arizona and Utah. Polygamy has also been advocated for by a growing number of legal scholars, the American Civil Liberties Union (ACLU) and a website called, which represents a Christian group that claims polygamy is found in the Bible and throughout history.

Given the fact that polygamous relationships have a history of creating gross power imbalances, coercive environments (particularly where young girls are concerned), and tremendous financial burdens upon the state, a genuine basis to ban such arrangements clearly exists. With respect to adultery, criminal bans on the practice do little, if anything, to protect marriage. Married people continue to cheat despite the existence of adultery, and rarely are adulterers prosecuted.

Traditional notions of marriage and family have been under renovation in this country for some time. Before the Supreme Court delivered it's landmark Loving vs. Virginia decision in 1967, interracial couples were forbidden to marry in 16 states. Even today, almost 40 years after Loving, there are those who oppose interracial marriage. (As Defense Secretary Donald Rumsfeld is fond of saying, democracy is messy).

Ultimately, coming to terms with a strategy to “protect” marriage will depend on how we as Americans choose to define that institution, and once we do, whether we can agree that definition is truly worth fighting for. In the meantime, adulterers and polygamists make for strange bedfellows.


Santorum Quote
Lawrence v. Texas
Adultery History
General Kevin Byrnes/Adultery
John Bushey/Adultery
Kinsey Study/Ball State University study — cited in Turley/Washington Post Article
Polygamy — Next Civil Rights Battle — reference to handful of polygamy court challenges
Polygamy General Facts
Loving v. Virginia — Case
Loving v. Virginia — Facts and Commentary

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Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently an associate professor of law at the University of Washington School of Law. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. To read the rest of Lis's bio, click here.